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Defamation Liability Related to Workplace Investigations

Frequently, workplace events give rise to a workplace investigation. The investigation may be conducted by an in-house HR person or a professional outside investigator. Workplace investigations play a central role in determining whether to discipline or terminate an employee and can have legal consequences for both employees and employers. An action for defamation can potentially result if false statements are made to the employee’s detriment. Although an employer may argue that statements made in the course of a workplace investigation are protected, that privilege would usually be conditional at best, meaning it would be lost if the publication was motivated by malice. Deaile v. General Telephone Company of California (1974) 40 Cal.App.3d 841, 847.

Malice sufficient to defeat the conditional privilege has been found where there has been a failure to investigate the statement(s) or conduct at issue thoroughly and verify the facts stated. Rollenhagen v. City of Orange (1981) 116 Cal.App.3d 414, 423; Widener v. PG&E (1977) 75 Cal.App.3d 415, 434-35. It has also been found where there has been purposeful avoidance of the truth or deliberate decision not to investigate facts. Antonovich v. Sup.Ct. (Schwellenbach) (1991) 234 Cal.App.3d 1041, 1048. Where the substance of the defamatory statements pose a substantial danger to the defamed party’s reputation, there is an even greater obligation to investigate the facts thoroughly and fairly. Failure to do so constitutes reckless disregard for the truth. Widener, supra, at 434. This includes the failure to interview obvious witnesses who could have confirmed or disproved the allegations. Khawar v. Globe Intern., Inc. (1998) 19 Cal.4th 254, 276.

“Although failure to investigate will not alone support a finding of actual malice, the purposeful avoidance of the truth is in a different category . . . Inaction, i.e., failure to investigate, which was a product of a deliberate decision not to acquire knowledge of facts that might confirm the probable falsity of [the subject] charges will support a finding of actual malice.” Antonovich v. Superior Court, 234 Cal.App.3d 1041, 1048 (1991) (internal citations omitted).

While there is no set way to conduct an appropriate investigation, a proper investigation should meet the EEOC’s guidelines in conducting investigations. The EEOC’s enforcement guidance is available on their website and can be viewed here: http://www.eeoc.gov/policy/docs/harassment.html In addition, the Association of Workplace Investigators (“AWI”) publication, Guiding Principles for Investigators Conducting Impartial Workplace Investigations, lays out eleven principles that reflect best practices for workplace investigations: http://www.aowi.org/assets/documents/guiding%20principles.pdf

Examples of Defamatory Criticism of Work Performance

In an earlier blog entry, we discussed how the publication of false criticism of poor performance, incompetence, or dishonesty—whether made in the context of a performance review or as the employer’s stated reason for the employee’s termination—is defamation per se. An employer may be liable for such defamatory statements subject to a showing of malice. Here are some examples of what California courts have held to be defamatory criticism of work performance:

Bank loan officer was accused of being “terminated because he was not following standard operating procedures regarding loans, lacked regard for customer’s privacy, and the bank had received a number of customer complaints about him.” Prevost v. First Western Bank (1987) 193 Cal.App.3d 1492, 1497.

Corporate officer accused of “making false statements,” using “his office to obtain revenge,” being a “black sheep,” “unscrupulous,” using “lies and hypocrisies,” having “desire for power” causing “him to act without reason,” being a “parasite in the organization who did nothing,” “proud, snobbish and vain,” “insane in command,” “irresponsible,” and “unable to assume responsibility and direction of groups.” Correia v. Santos (1961) 191 Cal.App.2d 844,854.

Manager discharged as a result of internal complaint to HR department of accusations of “sexual harassment and other improprieties.” Cruey v. Gannett Co. (1998) 64 Cal.App.4th 254,257.

Former employee terminated because he “misused company funds,” “falsified invoices,” and was “ineligible for rehire.” Kelly v. General Telephone Co. (1982) 136 cal.App.3d 278,284-285.

Office manager was “behind in her work,” “stealing money from the company” and “conspiring to steal money,” and worked a health insurance deal “to the detriment of other employees.” Davaris v. Cubaleski (1993) 12 Cal.App.4th 1582, 1586-1587,

This is not an exhaustive list. In sum, any false criticism of work performance can be defamatory if, upon its face, it “has a natural tendency to injure a person’s reputation, either generally, or with respect to his occupation.” Washer v. Bank of America (1943) 21 Cal.2d 822, 827.

Defamation Defense: What is the Conditional Privilege?

California Civil Code § 47(c) grants a conditional privilege against defamation to communications made without malice and on subjects of common interest. This conditional privilege is often used by employers to argue that they should be protected from liability for statements made about employees to other employees in the employer’s organization. Critical to determining whether the conditional privilege is even applicable is 1) whether the allegedly defamatory communication was made on a matter of common interest and 2) whether the employer acted without malice in making the statement. Only if both of these requirements are met can an employer be immune from liability for his or her statements.

Common Interest. The conditional privilege applies only if the statement is reasonably calculated to advance or protect the interest of the communicator or the person to whom the communication is made on a matter of “common interest.” Deaile v. Gen. Tel. Co. of Calif. (1974) 40 Cal.App.3d 841, 846. Depending on the circumstances, examples of statements made on a matter of “common interest” can include an employer’s job reference to a prospective employer and communications made between employees as part of a workplace investigation.

Malice. Even if a statement is made on a matter of “common interest,” the privilege may still be overcome by showing that the employer acted with malice. Malice for the purposes of establishing an abuse of the conditional privilege only requires a showing of a state of mind arising from hatred or ill will evidencing a willingness "to vex, harass, annoy or injure." (Burnett v. Nat. Enquirer, Inc. (1983) 144 Cal.App.3d 991, 1009. Although easy to state, establishing malice can be complex and nuanced and is a concept that both courts and attorneys frequently confuse. Future blog posts will clarify this concept further and discuss the many number of ways in which malice can be demonstrated.

Defamatory Defense: What is the Absolute Privilege?

Another defense to defamation is the absolute privilege. California Civil Code § 47(a) and (b) provide a limited set of circumstances in which an employer is relieved of any liability or responsibility for his statements even if they were published with malice. In general, there are five kinds of statements that are absolutely privileged:

1. Statements made in the proper discharge of an official duty. For this protection to be triggered, the statement must be made by a public official (in other words, only government officials) and must be made in the official’s official capacity.

2. Statements made in any legislative proceeding. For example, statements made by legislators during legislative debates or during political broadcasts and speeches are covered by this defense.

3. Statements made in any judicial proceeding. Also known as the litigation privilege, this defense protects all publications made in a judicial proceeding. For example, all statements made in court as part of an attorney’s representation of his client and all documents filed by an attorney with the court as part of that representation would be protected under the litigation privilege.

4. Statements made in any other official proceeding. An official proceeding is a proceeding which resembles a legislative or judicial proceeding. This defense includes protection for statements made before an administrative board.

5. Statements made in the initiation or course of any proceeding authorized by law and reviewable by mandamus. This includes statements made in quasi-judicial proceedings where there is a hearing, evidence is exchanged, and a determination of the facts is vested in a board, officer, or tribunal. Unlike the conditional privilege, if the absolute privilege applies, statements will not be actionable even if the defendant spoke the words with malice and/or knowing them to be false. The policy rationale behind this privilege is to eliminate the threat of liability for communications made during all kinds of truth-seeking proceedings—judicial, quasi-judicial, legislative and other official proceedings--without respect to the good faith or malice of the person who made the statement, or whether the statement ostensibly was made in the interest of justice. Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 360.

Although the absolute privilege sounds very narrow, courts have expanded its reach in some circumstances. For instance, courts have held that even communications concerning wrongdoing to an official administrative agency, where the communication is designed to prompt action by that agency qualifies as an “official proceeding” within the meaning of Civil Code § 47 and is therefore absolutely privileged, no matter how maliciously motivated.

Defenses to Defamation

California law recognizes a number of defenses to defamation claims. Some of the most major defenses to defamation are:

• Truth: proof that a defamatory statement is true is a complete defense because falsity is an essential element of both slander and libel.

• The alleged defamatory statement was merely a statement of opinion not fact: only false statements of fact or opinions that insinuate that they are based on undisclosed defamatory facts are actionable.

• Retraction: in cases involving publication of a libel in a newspaper or of a slander by radio broadcast, if a defamer retracts the allegedly defamatory statement that often will serve as a defense to any defamation lawsuit, especially if the defamer also apologizes.

• Lack of publication: lack of publication is a complete defense because publication is an essential element of both slander and libel. To prove the element of publication, the defendant must have uttered or distributed the defamatory statement to east least one person other than the plaintiff.

• Privilege: California law recognizes two types of privileges, the absolute privilege and the conditional privilege, both of which may immunize an employer from liability if he or she can show that certain criteria are met.

Of these defenses, perhaps one of the most frequently argued by employers is the privilege defense. Future posts will discuss this defense in more detail and the distinction between the absolute privilege and the conditional privilege.

The information contained above is intended for purely informational purposes. It does not in any way constitute legal advice and should not be relied upon as such. Use of such material does not, in any way, constitute an attorney-client relationship; only an express signed agreement can create such a relationship.